Playing with freedom of speech

We live in strange times. As part of my general internet rummaging, I came across a social media group that was calling for a boycott of a major retailer in Australia for the immutable sin of selling a particular type of bedspread.

The group known as the Collective Shout has launched a boycott on craft, fabric and manchester chain, Spotlight for “promoting the global porn empire” in selling a doona cover and a couple of pillow cases that feature the Playboy bunny logo.

The Playboy logo is one of the most recognisable on earth. It has transcended Playboy’s publishing business and now sits on all manner of consumer products from clothing, sunglasses, perfumes and now doona covers presumably for those unencumbered by self-consciousness.

It is worthwhile noting that Playboy magazine is banned in India, China, Myanmar, Malaysia, Thailand, Singapore and most Muslim countries throughout Asia and Africa, including Pakistan, Saudi Arabia and Iran.

In a brief but pleasant chat on Twitter, one of the Collective Shout’s spokespeople, Caitlin Roper, advised me that Playboy was more than a soft core magazine with dwindling sales. Its television and pay per view channels now stream adult entertainment into homes around the world, although not in Australia and this material is generally of a harder, more pornographic type.

It still sits in the vanilla category as far as I could tell but it is of a very different nature to the airbrushed wholesomeness of the Playboy centrefolds I recall from years ago.

Where Ms Roper and others of like mind regard the Playboy bunny logo with unreserved contempt, I regard it fondly, even nostalgically, evoking memories of Alex Haley’s interview of Martin Luther King Jr., or of feature articles written by literary giants Gore Vidal, Doris Lessing and Joseph Heller and yes, its special brand of homogenised images of naked women, too.

Regardless of what you think of Playboy, this issue reminds us that what offends one individual may not offend another. In a complex society, there are almost endless points of conflict between what some regard as immutable freedom of expression and those who might be upset by what they see, hear or read.

Collective Shout is entitled to feel offended and is entitled to take legitimate political action. What no one in our society should ever expect is that the business of offending conduct be criminalised or be regarded as unlawful.

This brings us to the federal government’s Human Rights and Anti-Discrimination bill 2012. The 200 page draft bill is described as omnibus legislation, taking elements of the Racial Discrimination Act and transposing or re-enacting them across discrimination in all its forms, not just racial vilification.

The contentious element of the Racial Discrimination Act - conduct “reasonably likely to offend, insult, humiliate or intimidate another person” is included in the bill as the legal measure for all forms of discrimination.

It is the word “offend” which is the most controversial.

On Monday night, chairman of the Australian Broadcasting Corporation and a former chief justice of the NSW Supreme Court, James Spigelman delivered the Human Rights Day Oration. One of Australia’s preeminent jurists, Mr Spigelman rounded on the contentious term “offend” in the bill. Any legislation needed to strike a balance between preventing hate speech while not impinging on free speech. Causing offence or injury would shift the balance in a manner that would necessarily impinge on the rights of all Australians to express themselves freely.

“When rights conflict, drawing the line too far in favour of one degrades the other right,” Mr Spigelman said. “Words such as ‘offend’ and ‘insult’ impinge on freedom of speech in a way that words such as ‘humiliate’, ‘denigrate,’ ‘intimidate’, ‘incite hostility’ or ‘hatred’ or ‘contempt’, do not. To go beyond language of the latter character, in my opinion, goes too far.”

We have the right to be offended but no right to expect that causing offence be criminalised or subject to judicial sanction.

What is being proposed by the Attorney General, Nicola Roxon is the legal enshrinement of nice feelings and the proposition that when an individual’s feelings are hurt, that person can take legal action against those who have hurt them. While the draft bill is the subject of community discussion and formal submission from a variety of interested groups around the country, it has no parallel anywhere in the Western world.

“I don’t believe that there’s any other country with which we would compare ourselves that makes offending conduct unlawful,” Mr Spigelman told the ABC’s PM program prior to giving his speech.

There might be a few countries among those who have banned Playboy that would regard offending conduct at one level or another as a crime. Iran has political prisons full of people who have committed no crime other than cause offence to the powers that be.

The other element of the bill is that those accused must prove their innocence – the exact inverse of the cornerstone of our legal system: the presumption of innocence. Once a complaint has been lodged, the burden shifts to the accused.

As The Australian’s Legal Affairs Editor, Chris Merritt wrote yesterday, the bill now has an uncertain future. Attorney-General, Nicola Roxon has brushed aside criticisms as being part of the consultation process.

It is hard to see how the draft bill could prevail in its current form. The Labor caucus is agitating for it to be scrapped or rewritten from scratch. Still, the scope and style of this bill as it stands should give all Australians cause for concern and provides the most compelling grounds for judging this government harshly at the ballot box.

Your Comments

Well now that we have finally achieved the dizzying heights of producing the dumbest primary school kiddies western world, free speech may well be all they have left - as they can’t Reed or Right. These lil tikes will be right at home in Union movement in years to come. Blame those demon Private Schools. Gonski wants to lower the standards of Private schools in the vain hope it will increase the outcomes in Public schools. Good luck.
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JackSpratWed 12 Dec 12 (10:29am)

Jack

What I do not understand is the motives behind Roxon’s legislation.

What is the driving force behind this very undisguised attempt to muzzle pretty well all criticism?

It is nasty stuff and would leave every special interest group to do its own thing without any public overview or criticism.

Jack the InsiderWed 12 Dec 12 (10:35am)

You tell me and we’ll both know, JS. It’s not as if there are not more pressing problems for this government.

MacWed 12 Dec 12 (10:36am)

Good piece.

Good manners should be all that is needed to prevent the “offence” of offence. Don’t do or say anything to anyone that is deliberately aimed at hurting or offending them.

Whether it’s the Conroy filter or Roxon ciggie packs (which even as a smoker I have some sympathy for) or this stupid piece of legislation, I just want the pollies to get out of my life. The pity of it all is I’m one of the diminishing few who still dress a little to the Left.

If the legislation proceeds as is, your Blog might become a sea of compliments, bonhomie and polite disagreement. And I’d hate to see that.

EcclesWed 12 Dec 12 (10:43am)

Jack, while not disagreeing with the general tenor of your piece, I do take issue with one statement - and this is just my personal opinion based on my professional activities. You suggest: “It is the word “offend” which is the most controversial.”

I disagree. From where I am sitting, “reasonably likely “ is the most controversial aspect. Controversial, because defining what is “reasonably likely” - in my opinion - is more difficult to define than “offend”.

What is the gold standard for “reasonably likely” ? My professional activities over many years have had to use some degree of statistical definition. From statistical tools, one can numerically quantify the likelihood of something happening. This level of precision is good in physical chemistry, although Lord Rutherford (of atom splitting fame) is quoted as saying, with respect to physics “if you need statistics to explain your experiment, you should have designed a better experiment”.

However, the statistical level of precision is unlikely to be used in determining the likelihood or not of one party offending another party by verbal or other means, in a legal context. I would like to see some sociological or psychological studies which can be used to illustrate whether or not the likelihood of offending someone can be so sharply defined.

Jack the InsiderWed 12 Dec 12 (11:12am)

The test is “by a reasonable person”, Eccles. Same thing, I guess but therein lies the lawyer’s picnic.

TracyWed 12 Dec 12 (10:44am)

Time we were freed from this “monstrous regiment of women” can I say that?

Jack the InsiderWed 12 Dec 12 (11:10am)

Not in six months time, Tracy.

Try HardWed 12 Dec 12 (10:47am)

Morning Jack, On topic, I think this legislation has a lot of potential to clean up politics I’m pretty sure that there is always someone in this great land that is ready to find any statement from any prominent person “Offensive” in fact it may be possible that I could be offended by my boss’ description of my performance especially if the don’t wish to increase my remuneration by the amount I desire. Of course they may be offended by my request for an increase, or my choice of shirt colour, or my spelling of colour.

Where will it all end? Won’t someone think of the children?? Can I ask that question without causing offence to certain elements of society???

Oh no, what have I become? I meant no offence to anyone. It won’t happen again….

Jack the InsiderWed 12 Dec 12 (11:15am)

You have to leave, TH.

Bill GrieveWed 12 Dec 12 (10:53am)

Just a little of subject,but you gotta read this Jack,,,Smoke sticker Stoush, Courier Mail, it’s a form of Freedom of Choice…

Jack the InsiderWed 12 Dec 12 (11:15am)

I have, mate and I am awaiting the AG’s response with great interest.

DwightWed 12 Dec 12 (10:55am)

I would be loathe to impute others’ motives here, but I’m beginning to believe they truly think we’re too stupid to think for ourselves.

Jack the word for today is braigetoir. It is an ancient and highly respected profession for which I feel I am eminently suited.

Jack the InsiderWed 12 Dec 12 (11:18am)

Had to look that up, Tony. We could do a duet one day.

Mr Dry TeatWed 12 Dec 12 (11:10am)

I don’t know which Labor pressure group has thought this one up, but I can tell you, in the sober light of day (youch - someone turn the sun down please!), that this legislation has me more worried about our democracy, and our tradition of free speech, than any other legislation enacted since Federation. People will now have the right, the RIGHT, to be offended, and to seek recompense. The onus of proof has been reversed from our legal norms and it now falls to the accused Offendor to prove he did not cause Offense, overturning several hundred years of Westminster judicial precedent. It will be possible to sue a company if its television ad causes Offense. This is not the Offense of broad community outrage, the ‘Kyle Sandilands’ type of outrage, but any pimple anyone can find. Don’t like having an Asian kiddie in the toilet paper ad? Be Offended, and sue. Someone refers to your haircut as weird? Be Offended and sue. Someone calls you a white bourgois leftist prick? Be Offended and sue. Being Offended will become a new national sport, and gleeful lawyers must be rubbing their hands together with unconcealed avirice at this vast cauldron of potential earnings. This is legislation to shut up dissenters. This is legislation to cover the arses of a bunch of over-priveleged twits who have not the intelligence to openly debate their agendas, and support their arguments with facts. This blog could well cease to exist if I thought something in it was causing me Offense. Someones opinions on climate change could be deemed to be Offensive. There seems no imaginable end to the list of bunkum the burdened could dream up to be Offended by. This is crap legislation, and it should and must be stopped.

Ahhh. Now, unburdened, I must return to the fishing. By crikey Jack! The Scots know how to make good firewater don’t they? No wonder the Celts nearly won! A bowl of porridge and a few belts of single malt for breakfast could fire up Mother Teresa! Laughing my way through your book; it all seems so very true.

Jack the InsiderWed 12 Dec 12 (11:21am)

It is a bill up for discussion but the way it has been conceived is a real concern, DT. Agreed, I am more worried about this than anything else on the government’s agenda at the moment.

Failed ComicWed 12 Dec 12 (11:13am)

Have just been perusing the pages of the October version of Playboy from Slovenia - just for the articles. I must admit I find them to all be too sloven[e]

Jack the InsiderWed 12 Dec 12 (11:17am)

Vidal and Heller are gone, mate. There’s not much in the articles these days.

Carl on the CoastWed 12 Dec 12 (11:18am)

Jack the Insider

I’m like you Jack, I’ve always fancied a bit of cheesecake under the doona. We used to call it our last tango in Paris.

What about yourself Jack?

Jack the InsiderWed 12 Dec 12 (11:19am)

I feel the playboy doona is a step too far. One doesn’t need to advertise, Carl.

DuckWed 12 Dec 12 (11:19am)

JackTI, I take offence at something or other at least once a day, not that I take any action about it except maybe to shake my head in exasperation or despair. Maybe I should start using the law with perhaps a good income from the damages awarded?

Jack the InsiderWed 12 Dec 12 (11:20am)

Money to be made, Duck.

EcclesWed 12 Dec 12 (11:30am)

Quite so, Jack. I would hazard that consensus on what constitutes a reasonable person is a mirage.

Should we really be advocating even more lawyer’s picnics?

Jack the InsiderWed 12 Dec 12 (11:49am)

No, mate.

Try HardWed 12 Dec 12 (11:33am)

Dear Jack, publish if you think it’s needed. Sincerely Chris

I’m Sorry Jack,
My appologies to one and all, I realise that I should have clearly stated that my previous post was Very-Tongue-In-Cheek.

I thoroughly enjoy your work and would be very grateful if you might reconsider my removal from this blog.

Sincerely TH

Jack the InsiderWed 12 Dec 12 (11:50am)

I didn’t mean the blog, TH. You’re always welcome here. I knew your comments were tongue-in-cheek. I meant you have to leave the country.

Lazy Speech WriterWed 12 Dec 12 (11:41am)

This legislation would be a disaster for me. One of my standard clichés is, “Some may be offended by these words but ...”.

Carl on the CoastWed 12 Dec 12 (11:42am)

Regarding the contentious elements of the RDA, I wonder where the “no sometimes means yes” arguement fits in.

It’s a proposition that may still be held by some judges.

John HerbertWed 12 Dec 12 (11:47am)

Nicotine Roxoff is really exposing herself as a lightweight on this one. For the love of pete get over yourself dear! Perhaps if they changed the title to Playman it would be less offensive. And so the wowsers took over the world...Feck me!!

Carl on the CoastWed 12 Dec 12 (11:57am)

Jack, tell me your 11.19am was tongue in cheek surely.

Have you seen the doonas on display on E-Bay? They wouldn’t raise a blush on a prude.

Better the Playboy doonas than the gangrene eyeballs on the ciggie packets.

Jack the InsiderWed 12 Dec 12 (12:18pm)

They just seem silly to me, mate. Not pornographic. Just silly.

JazzaWed 12 Dec 12 (12:01pm)

So, if this is passed, and if I’m offended that the A-G doesn’t appear to believe I have the ability to think for myself then can I sue the A-G???

Try HardWed 12 Dec 12 (12:10pm)

Thanks Jack, you had me perplexed and a little worried there. Excellent use of comedic irony though

Carl on the CoastWed 12 Dec 12 (12:36pm)

Eccles

You make a good point Eccles. I believe “reasonableness” is a lawyers favourite word; its found in many statutes. In fact it’s even used to define “negligence”, itself being a nebulous word.

Lawyer’s picnics abound.

Far as I’m concerned, they can have the bloody gate, so long as they don’t take offence.

yerself is steamWed 12 Dec 12 (12:43pm)

Jack, the right to show contempt for ideas and behaviours we find contemptible is every bit as important as our right to give and take offense.
Thank the lord for Jim Spigelmans speech which may serve to remind the Left of it’s libertarian streak.

nossyWed 12 Dec 12 (01:33pm)

Labor is going way over the top I believe in trying to force Australians to contstrain themselves re free speech. What on earth is wrong with this so called government? Abbott only recently said he solidly believes in free speech even to the point where people have their feelings a bit upset - stopping short of course within existing legal parameters. Free speech is the cornerstone of our great Democracy and god help any government who tries to interfere with that right - they will, as you say Jack, be judged very harshly at the ballot box. Roxon is a goose! - now hows that for free speech - would that hurt her feelings?

Jack the Insider

Jack the Insider is a highly placed, dedicated servant of the nation with close ties to leading figures in politics, business and the union movement. Jack tends to be present at crucial moments in world history, ready to grapple with huge events and give them a gentle nudge. His real identity must remain unknown for obvious reasons. Jack's new book The Insider's Guide To Power In Australia is available from Random House.